1. A landowner may attack the validity of a condemnation proceeding in a separate action;
however, there is no provision in the Eminent Domain Procedure Act, K.S.A. 26-501 et
seq., precluding
a landowner from raising statutory defect arguments in the condemnation proceeding itself when
the
defects render the condemnation proceeding void. Absent waiver, estoppel, or laches, a
landowner may
raise these defects either before or after an appeal of an award is taken. Although K.S.A. 26-508
provides that an appeal is limited to the issue of compensation, raising statutory defects that
render the
condemnation proceeding void before trial of the appeal is not foreclosed.

2. Although it is conceivable that a condemnation petition might include tracts excluded
from the
appraisers' report (if the condemnor decided not to pursue condemnation of certain tracts initially
thought to be needed), K.S.A. 26-506 does not allow the appraisers' report to include tracts and
record
owners not listed in the petition.

3. K.S.A. 26-504 sets forth the necessary findings that the judge must make from the
petition before
the condemnation can go forward. If the petition fails to list the property to be condemned, the
judge
cannot make any of the findings to allow condemnation to go forward as to that property.

4. Inverse condemnation is an action initiated by the landowner and is available when
private
property has been taken for public use without formal condemnation proceedings and where it
appears
there is no intention or willingness of the taker to bring the condemnation action.

5. In an appeal arising out of an eminent domain proceeding, the record is reviewed, and it
is held:
(1) The first condemnation award was void for lack of jurisdiction because of statutory defects in
the
condemnation proceeding; (2) the condemnor has taken the landowner's property but has
abandoned the
condemnation proceeding, and the landowner is entitled to reasonable expenses under K.S.A.
26-507(b);
(3) the landowner has an inverse condemnation claim against the City; and (4) injunctive relief
against
the condemnor is improper, in that the landowner can be adequately compensated with monetary
damages.

Joseph W. Kennedy, of Morris, Laing, Evans, Brock & Kennedy,
Chartered, of Wichita, argued
the cause, and Robert W. Coykendall, of the same firm, and Gary E.
Rebenstorf, director of law, and
Douglas J. Moshier, senior assistant city attorney, were with him on the briefs for
appellant.

Robert W. Kaplan, of Kaplan, McMillan & Harris, of Wichita, argued
the cause and was on the
briefs for appellee R.E.M. Properties.

The opinion of the court was delivered by

SIX, J.: This first impression case arises from a condemnation initiated by the City of
Wichita
(City) to acquire land for its $6 million ice rink project. The issues are tied together in a land
acquisition
Gordian knot. Our task is to resolve the controversy without harming established concepts of
eminent
domain law. In doing so, we untie rather than arbitrarily cut the knot.

The City appeals two orders entered by the district court. In the first order, after the
property
owner R.E.M. Properties (REM) appealed the initial condemnation award, the district court held
that it
had no jurisdiction over either REM or its property (tracts 47 and 48). The City failed to list
REM and
tracts 47 and 48 in the condemnation petition for the land on which the ice rink was to be built.
The City
did not amend the petition to add tracts 47 and 48 until after that initial award. In the second
order, in a
partial ruling on REM's motion for expenses following the City's failure to deposit the second
condemnation award, the district court held that the City had abandoned the condemnation
proceeding,
had no title or right to possession, and had to surrender possession and remove all ice rink
improvements.

Our jurisdiction is under K.S.A. 60-2102(a) (final order or injunction) and K.S.A.
20-3018(c)
(transfer on our motion).

The Issues

The issues are whether: (1) the district court had jurisdiction to consider statutory defects
in the
condemnation proceeding raised by REM after REM appealed the initial condemnation award
but before
trial of that appeal; (2) the City acquiesced in the district court's ruling that it had no jurisdiction
over
REM or its property at the time of the initial condemnation award; (3) the district court erred in
determining that the initial condemnation award was void; and (4) the district court erred in
determining
that the City had abandoned its condemnation and in entering injunctive relief against the City.

We affirm in part, reverse in part, and remand. The ice rink survives. Although the City
has
taken REM's property, it has abandoned the condemnation proceeding. REM is entitled to
reasonable
expenses under K.S.A. 26-507(b) and has an inverse condemnation claim against the City.

FACTS

The facts are unique. Neither the parties nor our independent research have located a
similar
condemnation case. In November 1994, the City passed an ordinance approving the acquisition
of
private property by eminent domain to build a public ice skating rink. The published ordinance
listed 17
tracts to be taken, including REM's property, tracts 47 and 48. On December 22, 1994, the City
filed its
petition in eminent domain to acquire the necessary property. The petition listed only seven of
the tracts
shown in the ordinance and the names and addresses of the record owners and lienholders for
those
tracts. Tracts 47 and 48 were not listed, and REM was not named as a party. Notice of the filing
of the
petition was published, stating that the petition was to be heard on January 6, 1995. The notice
did not
list tracts 47 or 48 or name REM. The affidavit of mailing said that copies of the notice were
mailed to
persons shown in the notice (not including REM).

The district court found that the City had the power of eminent domain and that the
ordinance
described the property being condemned. An order dated January 6, 1995, appointed three
appraisers
and set the time for filing of the appraisers' report.

Notice of a public hearing on the appraisers' report was published. The public hearing
notice
showed REM in the caption, listed nine tracts, including tracts 47 and 48, and listed the record
owners
and lienholders of all of those tracts (including REM). An affidavit of mailing stated that copies
of the
notice were mailed to the persons shown in the notice.

The appraisers' report was filed. Regarding notice of the public hearing before the
appraisers,
the report provided:

"On the 13th day of January, 1995, we mailed copies of said published
notice of our Public Hearing to the Plaintiff and all Defendant parties
named in the petition whose addresses were known to us or could with
reasonable diligence be ascertained, the proof of which mailing has been
filed in this action."

The report listed damages for the taking of five tracts, 34, 37, 47, 48, and 53, for a total of
$191,080.
Tracts 47 and 48 were valued at $29,000. An order approving the appraisers' report and allowing
the
appraisers' fees and costs was entered. The City deposited the total appraisers' award, plus fees
and
costs with the clerk of the district court. Notice of the deposit was mailed to REM by the clerk's
office.
The City mailed notice of the appraisers' award to the landowners shown in the appraisers' report
(including REM). The notice informed the landowners that they had 30 days from the date of
filing of
the appraisers' report to appeal the award.

An undated order filed January 30, 1995, granted the City leave to file an amended
petition
without further notice or hearing to add two tracts, the owners, and interested parties "who were
inadvertently omitted from this proceeding and who are necessary parties hereto."

On March 1, 1995, REM filed a notice of appeal of the appraisers' award for tracts 47 and
48,
asserting that REM was dissatisfied with the award and also reserving the right to contest both
irregularities in the proceeding and jurisdiction. The next day, the City filed its amended
condemnation
petition, naming REM in the caption and listing nine tracts, including 47 and 48, and their record
owners
and lienholders.

Trial on REM's appeal of the appraisers' award was scheduled for December 5, 1995. On
November 21, 1995, REM filed a motion for an order remanding the matter to a new panel of
court-appointed appraisers for another damage determination, arguing that the court lacked
jurisdiction as to
the first appraisers' award. REM reasoned: (1) Neither the landowner nor tracts 47 and 48 were
listed
in the initial condemnation petition; (2) the landowner was not named as a party and was not sent
any
notice of the petition; (3) the order granting the City leave to file an amended petition was
obtained ex
parte and was not filed until January 30, 1995; and (4) the City did not file its amended petition
until
March 2, 1995, after approval of the first appraisers' report.

The City countered that any notice problem should have been addressed before appealing
the
award and, by appealing, REM could only challenge the amount of the award. The City also
argued that
the district court lacked jurisdiction to order a remand once an appeal was filed. In an oral ruling
on
November 27, 1995, the district judge advised that REM's motion would be granted. However,
the
judge said that he would delay entering the order to allow the City to decide whether to appeal.
The
judge claimed that the City's counsel later told him that an order would not be necessary. No one
appeared for trial on December 5, 1995, and in February 1996, REM's appeal of the $29,000
award was
administratively dismissed for lack of prosecution.

The City proceeded to obtain another appraisers' award for tracts 47 and 48 and published
notice
of hearing on the filing of the City's amended petition during the week starting April 19, 1996.
The
notice listed REM and tracts 47 and 48, and provided that hearing on the amended petition would
be
held before the district court on May 7, 1996. Notice of the hearing was mailed to REM. Three
appraisers were appointed (two had been appraisers on the first panel). On May 24, 1996, the
appraisers
filed their report awarding $132,325 as damages for the taking of tracts 47 and 48. The
appraisers'
report was approved and appraiser fees and costs allowed and paid by the City. The City notified
REM
of the filing of the appraisers' report but did not deposit the second award with the clerk of the
district
court. No appeal was taken. By the time of the second appraisal, the City had possession of
tracts 47
and 48, the existing improvements had been demolished, and construction of the ice rink was
underway.

On July 8, 1996, REM filed a motion requesting an award of expenses and reasonable
attorney
fees under K.S.A. 26-507, asserting abandonment because of the City's failure to deposit the
second
award. The City opposed the motion, contending there was no abandonment because the City
had
deposited the first award of $29,000.

At the conclusion of the hearing on the motion, the district judge said: "Court's going to
award
the return of the property and the removal of the improvements from that property at the expense
of the
condemning authority." The judge reiterated his oral ruling of November 27, 1995, that the court
had no
jurisdiction as to tracts 47 and 48 at the time of the initial $29,000 award.

REM's attorney prepared proposed journal entries reflecting the court's rulings, but the
City
objected. The parties appeared for hearing on the disputed journal entries. The court made a
detailed
recitation of the facts and adopted the journal entries prepared by REM's attorney, one reflecting
the
court's November 27, 1995, oral ruling that it had no jurisdiction as to the $29,000 award and the
other,
concerning REM's motion for expenses, holding that: (1) the City had abandoned tracts 47 and
48, (2)
REM was the owner of 47 and 48, (3) the City had no right to possession, (4) title was quieted
against
the City, and (5) the City should surrender possession to REM and remove the improvements.
The
judge left open the issue of REM's expenses and attorney fees until REM recovered its property.

The City has appealed both orders. We granted the City's application for a stay pending
appeal,
along with REM's request for expedited consideration. The district court's order for removal of
improvements would have caused the ice rink to be demolished. (At oral argument we were
informed
by counsel for REM that tracts 47 and 48 are now under the ice.)

The City argues that the district court lacked jurisdiction to consider any statutory defects
in the
condemnation proceeding or enter any order correcting, modifying, or amending the first
appraisers'
report after REM appealed the first award. According to the City, REM's remedy after the first
award
was to pursue an inverse condemnation action because the court lacked jurisdiction to grant REM
any
relief in the condemnation proceeding. REM responds that it could have filed an inverse
condemnation
action at that point, in view of the invalidity of the first appraisers' report, but the City's election
to seek
the second appraisers' report negated any need to file such an action.

We recently summarized the Eminent Domain Procedure Act, K.S.A. 26-501 et
seq., (the Act) in
Landau Investment Co. v. City of Overland Park, 261 Kan. 394, 930 P.2d 1065
(1997). In Landau, we
affirmed the district court's order in the appeal of the condemnation award allowing the
condemnor to
amend the petition and appraisers' report under K.S.A. 60-215(b) to correct the legal description
of the
property condemned. The City of Overland Park sought to condemn certain drainage and
temporary
construction easements on property owned by Landau. Although the legal descriptions in the
city's
condemnation petition placed the easements approximately 200 feet from the correct location, all
of the
parties, including the city, Landau, the appraisers, and the contractor worked from the correct
legal
description provided by the project plans prepared by the engineers. However, the appraisers'
report
also contained the same erroneous legal descriptions used in the petition. Landau appealed the
condemnation award. The city discovered the error and notified Landau during trial preparation.
Landau filed an inverse condemnation action. The city then moved to amend the original
condemnation
petition and appraisers' report to correct the legal description. The district court granted the
amendment.
Landau failed to show any prejudice. The district court made the appropriate findings for an
interlocutory appeal. We affirmed, deciding that "the mistake in description was not the kind of
'vital
failure' which 'vitiates the proceeding.' 261 Kan. at 403 (citing Dick v. Drainage District
No. 2, 187
Kan. 520, 527, 358 P.2d 744 [1961]). In disagreeing with Landau's argument that the district
court was
without jurisdiction to authorize amendments to pleadings on appeal from a condemnation
award, we
relied on K.S.A. 60-215(c) and allowed the amendment correcting the legal description to relate
back to
the time of the filing of the petition.

"It must again be emphasized that all parties relied upon the correct
description in the project plans, that the property appraised was the
property intended to be condemned, that all parties proceeded with full
knowledge of the property sought to be condemned, that neither the parties
nor the court was deceived or misled, and that the record contains no
evidence of any prejudice to the landowner. In fact, granting the
amendment under these circumstances preserves judicial economy,
reduces costly expense and delay, and serves to promote justice in these
proceedings." 261 Kan. at 410.

The amendment in Landau ensured that trial of the appeal would be based on
the correct property
description. Landau did not consider the question of whether statutory defects
rendering the
condemnation proceeding void could be raised after an appeal is filed. However,
Landau is authority for
allowing nonprejudicial corrections to the petition and appraisers' report after an appeal of an
award has
been filed. A sensible extension of Landau permits consideration, after filing an
award appeal, of
whether the condemnation proceeding is void because of statutory defects in the petition.

In arguing that once an appeal is taken from an award, the district court has no
jurisdiction to
consider an attack on the validity of a condemnation proceeding, the City relies on State v.
Boicourt
Hunting Ass'n, 177 Kan. 637, 644-45, 282 P.2d 395 (1955). However,
Boicourt did not involve a claim
that the condemnation was void because the condemnor failed to comply with the statutory
eminent
domain procedure.

In In re Condemnation of Land for State Highway Purposes, 235 Kan. 676,
683 P.2d 1247
(1984), after the appraisers' report was filed, the landowners filed several motions in a highway
project
condemnation proceeding initiated by the Secretary of Transportation. The motions sought to
challenge
condemnor's compliance with certain federal and state legislation and the district court's finding
that the
takings were for lawful purposes. Landowners also sought to have the construction plans
produced and
made a part of the petition, to extend the appraiser's proceedings, to amend the taking, and to
disqualify
an appraiser. The district court denied the motions. The landowners appealed the condemnation
award
and denial of the motions. The first question was whether there was jurisdiction to consider
denial of the
motions. The landowners argued that jurisdiction existed under K.S.A. 60-2102(a)(3)
(proceeding
involving title to real estate) or (a)(4) (final order). We held that the landowners had no right to
appeal
the adverse ruling on the motions. We did not say that the motions could not be filed in the
condemnation proceedings, but held that an interlocutory appeal was not allowed. None of the
motions
raised statutory defects in the condemnation proceeding. Like Boicourt, In re
Condemnation of Land for
State Highway Purposes is distinguishable.

If a landowner attacks the condemnation proceeding in a separate action and chooses not
file an
appeal of the condemnation award, then the landowner assumes the risk that the court may not
find the
condemnation proceeding void, and the time to appeal the condemnation award will have
expired. Had
the landowner raised the statutory defects in the condemnation proceeding instead of in a
separate
action, those statutory defects possibly could have been corrected and trial of the award appeal
avoided.
Here, REM was denied input in the initial appraisal process. After REM appealed the first
award, it
raised the statutory defects. The district court ruled that those defects rendered the condemnation
proceeding void for lack of jurisdiction over REM's property. The City then followed the
statutory
procedure in obtaining a second appraisal, and REM did not pursue its appeal of the first award.

Although a landowner may attack the validity of a condemnation in a separate
proceeding, as in
Dick, 187 Kan. 520, there is no provision in the Act precluding a landowner from
raising statutory defect
arguments in the condemnation proceeding when the defects render the proceeding void. Absent
waiver,
estoppel, or laches, a landowner may raise statutory defects either before or after the appeal of an
award.
Although K.S.A. 26-508 provides that an appeal is limited to the issue of compensation, raising
statutory
defects that render the condemnation proceeding void before trial of the appeal is not foreclosed.

Does Appeal of the Award Waive Statutory Defects in the
Proceeding?

The City argues that REM waived any defects in the condemnation proceeding by
appealing the
initial condemnation award. REM points out that it expressly reserved jurisdiction objections in
its
notice of appeal.

In Unified School District v. Turk, 219 Kan. 655, 549 P.2d 882 (1976), the
landowners, Mr. and
Mrs. Turk, received the required statutory notices and did not appeal the award in a school
district's
condemnation action. However, later, after the school district deposited the award and took
possession,
Mrs. Turk moved for reconsideration of the appraisers' report. Mrs. Turk attempted to raise
various
defects in the proceeding, claiming she did not receive any notices, did not understand English
and was
ignorant of the proceedings, and that the property was worth substantially more. The district
court
ordered that the appraisers meet with the Turks, consider whether a larger award should be made,
and
file a supplemental report. The supplemental report reaffirmed the initial award. The Turks
appealed
the supplemental award. The school district moved to dismiss and appealed the order
reconvening the
appraisers and extending the time to appeal the condemnation award. We reversed the order
reopening
the condemnation proceedings and affirmed dismissal of the Turks' appeal of the condemnation
award.
We agreed with the school district's contention that the district court did not have authority to
reopen the
proceedings after the time to appeal the original award had expired, "absent any failure to comply
with
the statutory requirements which would render the proceedings void." 219 Kan. at 658. The
inference
from Turk is that had statutory defects rendered the proceedings void, a reopening
may have been
proper.

Turk is distinguishable from this case because it did not involve a statutorily
defective
condemnation proceeding. The Turks requested another appraisal after claiming not to have
received
sufficient notice of the first appraisal. They did not appeal the first condemnation award. The
question
of whether statutory defects in the proceeding could have been raised after appeal of the award
was not
considered.

The City cites early road condemnation cases in arguing that REM waived any defects in
the
condemnation proceeding once the initial condemnation award was appealed: see Wilson
v. Cloud
County, 90 Kan. 107, 132 Pac. 1176 (1913); Wilson v. Cloud County, 87
Kan. 798, 126 Pac. 642 (1912);
and Flagel v. Jackson County, 83 Kan. 709, 112 Pac. 622 (1911). The three early
cases did not consider
failure to comply with the statutory condemnation procedure and, thus, also are distinguishable.

The City's Acquiescence

REM argues that the City's actions in pursuing a new appraisal establish acquiescence in
the
November 1995 ruling (journalized in the first order in this appeal). However, because the issue
of the
validity of the initial condemnation award must be addressed in our review of the second order
(granting
the injunctive relief), we find it unnecessary to consider the acquiescence question.

Statutory Defects in the Initial Condemnation Award

Under the provisions of K.S.A. 26-502, the condemnor's only obligation in naming
parties is to
name in the petition the owners and all lienholders of record and any party in possession.
Morgan v.
City of Overland Park, 207 Kan. 188, Syl. ¶ 6, 483 P.2d 1079 (1971). The property
rights taken by a
condemnor are to be determined by the language in the petition and in the appraisers' report. A
condemnor bears the burden of drafting its petition to show the limitations in its taking.
Hudson v. City
of Shawnee, 246 Kan. 395, Syl. ¶ 2, 790 P.2d 933 (1990).

The City did not comply with K.S.A. 26-502 and K.S.A. 26-503. The City failed to name
REM
and to list tracts 47 and 48 in its initial condemnation petition and also failed to include REM in
the
initial publication and mailing following the filing of the petition. REM was not notified that its
property (tracts 47 and 48) was being condemned by the City, and was not given notice of the
date fixed
for the court to consider the initial petition and to appoint appraisers. The record is conflicting
about
whether REM received notice of the January 25, 1995, appraisers' hearing. REM was denied the
opportunity of any input into the selection of appraisers. REM was given that opportunity after
the City
filed its amended petition and a different panel of appraisers was appointed (although two of the
three
were the same), resulting in a substantially higher award.

REM would have known that its property was being condemned, at the earliest, after the
initial
appraisers were already appointed. Even if notice was given of the hearing of the initial
appraisers'
report, and that notice also listed tracts 47 and 48, REM could have been confused because it was
not
given any notice that a condemnation petition had been filed against its property. The ex parte
order
authorizing the petition amendment did not mention REM or tracts 47 and 48. The order was not
filed
until January 30, 1995, the date the first appraisers' report was filed. As previously discussed,
the
petition amendment adding REM and tracts 47 and 48 was not filed until March 2, 1995. These
vital
failures in the initial petition (the jurisdictional instrument) and in statutory notice void the
proceeding.
See Dick, 187 Kan. at 527. The large discrepancy between the first ($29,000) and
second ($132,325)
appraisals implies that REM was prejudiced by the statutory defects in the first appraisal.

The City argues that Landau supports the ex parte petition amendment
because we allowed a
petition and appraisers' report amendment after appeal of the award. We observed in
Landau that the
statutory defects were not sufficiently serious to vitiate the proceeding. K.S.A. 26-502 provides
in part:
"No defect in form which does not impair substantial rights of the parties shall invalidate any
proceeding." K.S.A. 26-503 provides in part: "No defect in any notice or in the service thereof
shall
invalidate any proceedings." The City reasons that REM had notice of the intent to condemn
tracts 47
and 48 because the two tracts were included in the initial ordinance authorizing the
condemnation and in
the order approving the petition. However, the City did not pursue condemnation against all of
the
properties listed in the ordinance. Although it is conceivable that a condemnation petition might
include
tracts excluded from the appraisers' report (if the City decided not to pursue condemnation of
certain
tracts initially thought to be needed), K.S.A. 26-506 does not allow the appraisers' report to
include
tracts and record owners not listed in the petition. Unlike Landau, the defects in the
City's initial
condemnation petition and notice impaired substantial rights to the prejudice of REM.

K.S.A. 26-504 sets forth the necessary findings that the judge must make "from the
petition"
before the condemnation can go forward. If the petition fails to list the property to be
condemned, it is
impossible for the judge to make any of the findings to allow condemnation to go forward as to
that
property. K.S.A. 26-504 was not complied with.

The City claims that under K.S.A. 60-215(b) ("When issues not raised by the pleadings
are tried
by express or implied consent of the parties, they shall be treated in all respects as if they had
been raised
in the pleadings.") its March 2, 1995, petition amendment adding REM and tracts 47 and 48 to
the
proceeding was proper, although it was made after approval of the first appraisers' report. REM
responds that no analogy to 60-215(b) should be drawn here because REM never received notice
of or
consented to this ex parte amendment. The City's K.S.A. 60-215(b) assertion is not well taken.

The district court's determination that the first condemnation award was void is affirmed.

Timing of REM's Motion for Remand

Although REM reserved its statutory defect arguments in its notice of appeal of the first
award
filed March 1, 1995, it did not raise those arguments for hearing until November 1995 when it
filed the
motion for remand (only a month before the appeal was scheduled for trial). A review of the
court file in
March 1995 would have revealed those statutory defects. It is puzzling why REM waited so
long. The
City had taken possession of the property, cleared it, and commenced construction of the ice rink.
However, REM did not seek to stop the ice rink project; it only sought a valid appraisal. REM's
delay
in filing the motion for remand did not prejudice the City. Also, as discussed below, after the
district
judge granted REM's motion, the City proceeded to obtain the second appraisal.

Effect of City's Failure to Deposit Second Award While Retaining
Possession

K.S.A. 26-507(a) provides:

"Payment of award; vesting of rights. If the plaintiff desires to
continue
with the proceeding as to particular tracts it shall, within thirty (30) days
from the time the appraisers' report is filed pay to the clerk of the district
court the amount of the appraisers' award as to those particular tracts and
court costs accrued to date, including appraisers' fees. Such payment shall
be without prejudice to plaintiff's right to appeal from the appraisers'
award. Upon such payment being made the title, easement or interest
appropriated in the land condemned shall thereupon immediately vest in
the plaintiff, and it shall be entitled to the immediate possession of the
land to the extent necessary for the purpose for which taken and consistent
with the title, easement or interest condemned. The plaintiff shall be
entitled to all the remedies provided by law for the securing of such
possession."

Although the City timely deposited the initial condemnation award of $29,000, it has not
deposited the second award for tracts 47 and 48. The first appraisers' report was void as to REM.
The
City's argument that it has title by virtue of that deposit fails. The $29,000 on deposit is
insufficient to
cover the second award. The City failed to comply with K.S.A. 26-507(a). Title and the right to
possession have not vested in the City. K.S.A. 26-507(b) provides that if the deposit is not
timely made,
then "condemnation is abandoned as to those tracts." However, under K.S.A. 26-507(a), the
condemnor
is entitled to possession only after deposit of the award. K.S.A. 26-507 does not contemplate a
condemnor taking possession and using property before payment of the award.

REM claims that the City's failure to deposit the second award constitutes abandonment.
Here,
the City took possession of tracts 47 and 48 after deposit of the initial award of $29,000 on
February 2,
1995, and has constructed a $6 million ice rink on the property. "Taking" in a condemnation
proceeding
means the acquiring of possession and right of possession and control of tangible property to the
exclusion of the former owner. Steck v. City of Wichita, 179 Kan. 305, 313, 295
P.2d 1068 (1956).
Although the City has not yet paid for the property, clearly, there has been a "taking." The City
has had
exclusive and continuous possession of the property since sometime shortly after February 2,
1995.

Abandonment is controlled by K.S.A. 26-507, and the City's failure to timely deposit the
second
award establishes abandonment of this condemnation proceeding. Under K.S.A. 26-507(b),
REM is
entitled to seek its reasonable expenses.

We acknowledge cases from other jurisdictions applying the rule that no abandonment
can take
place once the condemning authority takes possession of the property and uses it to the point that
the
status quo cannot be restored. See, e.g., Carl Roessler, Inc. v. Ives, 156 Conn. 131,
140, 239 A.2d 538
(1968) (In highway condemnation proceeding, where highway commission took actual
possession and
demolished and removed buildings located on property to be condemned, once there had been a
"taking,"
the condemnor could not unilaterally abandon part of the acquisition and require the landowner
to return
part of the deposit received.); and Urban Renewal Agency of City of San Antonio v.
Abdo, 562 S.W.2d
872, 874 (Tex. Civ. App. 1978) (Urban Renewal Agency was not entitled to dismiss
condemnation
proceedings, where it had taken possession of landowners' rental property, continued possession
for an
extended time, certain fixtures and improvements had been removed, and some tenants had
moved out.).
However, in both Ives and Abdo, unlike this case, the condemning
authority sought, and the condemnee
opposed, abandonment.

Inverse Condemnation

Inverse condemnation is an action initiated by the landowner and is available when
private
property has been taken for public use without formal condemnation proceedings and where it
appears
there is no intention or willingness of the taker to bring the action. Lone Star Industries,
Inc. v.
Secretary, Kansas Dept. of Transp., 234 Kan. 121, Syl. ¶ 1, 671 P.2d 511 (1983).
Because the City has
taken REM's property and abandoned this condemnation proceeding, REM has an inverse
condemnation
claim against the City. See Dick, 187 Kan. 520, Syl. ¶ 1. The proper measure
of damages in a
condemnation proceeding should be based upon the conditions as they existed at the time the
landowner's land was appropriated. Collingwood v. Kansas Turnpike Authority, 181
Kan. 43, 48, 310
P.2d 211, vacated and reversed in part on reh., 181 Kan. 838, 317 P.2d 400 (1957).

The Mandatory Injunction to Remove the Skating Rink

The City argues that the Act did not give the district court the authority to quiet title and
order
injunctive relief against the City, especially when REM sought no such relief in its motion for
expenses.
The City also argues that its due process rights were violated by the district court's sua
sponte injunction
because the City had no notice that any injunctive relief was being sought. REM responds that
the
district court was merely carrying out the legislative directives of the Act by affirming that the
City's
abandonment left title in the landowner and made the City's possession illegal. REM also
responds that
the position the City took in opposing REM's motion for expenses invited the district court to
rule on the
question of whether the City had title or any right to possess the property.

Several factors weigh against the injunctive relief imposed by the district court. REM
has not
contested the City's eminent domain power or argued that the taking of the property for the ice
rink is
unlawful. As the City points out, REM never asked for injunctive relief. The City took
possession
shortly after depositing the $29,000 award in February 1995 and, since then, has cleared the
improvements and built an ice rink. See Murray v. Kansas Dept. of Transportation,
239 Kan. 25, 28,
716 P.2d 540 (1986) (denial of injunctive relief to halt condemnation of certain property upheld
based
on laches; condemnees waited 16 months before challenging the project, and construction was
well
underway). REM's only concern has been with the amount of compensation to be received for its
property. Although the City has not yet paid full compensation for the property and does not
have title
to it, the amount of compensation due having not yet been judicially determined, no useful
purpose
would be served in requiring the City to demolish the ice rink and return REM's property. The
status
quo has been irretrievably altered. During oral argument REM's counsel was emphatic in saying
that
"their ice rink is not in danger." Demolition as injunctive relief is not appropriate.

Conclusion

The initial $29,000 award is void for failure to comply with statutory procedure. The
district
court's ruling on that award is affirmed. The City has abandoned this condemnation proceeding
by
failing to deposit the second award. REM is entitled to seek reasonable expenses under K.S.A.
26-507(b). REM has an inverse condemnation claim against the City by virtue of the City's
taking.

The district court is affirmed in part and reversed as to the injunctive relief imposed. The
case is
remanded for proceedings consistent with the opinion.